WASHINGTON (CN) — Perpetrators of domestic violence are already taking advantage of the new legal protections created by the Supreme Court, members of the Senate’s judiciary panel argued Wednesday, pointing to a recent holding out of the Fifth Circuit.
The case erupted out of Texas, where a man who faced a domestic violence restraining order and was involved in five prior shootings shot into the air at a Whataburger restaurant after his friend’s credit card was declined.
Zackey Rahimi pleaded guilty after he was indicted for illegal gun possession, but the Fifth Circuit vacated that conviction on Feb. 2, relying on last year's Supreme Court decision in New York State Rifle & Pistol Association v. Bruen.
Doing away with a two-part legal test that flowed from an earlier decision expanding gun rights, the 2008 case District of Columbia v. Heller, the high court concluded in Bruen that judicial review of gun laws must consider the historical constitutional interpretation of the Second Amendment. This led the Fifth Circuit to toss legal restrictions preventing domestic abusers like Rahimi from owning guns, reasoning that the Constitution’s framers would not have tolerated such a law.
Senator Dick Durbin called the precedent unacceptable Wednesday in a hearing of the Judiciary Committee, of which he is the chair.
“I can’t square that decision with the actual danger that women and police officers face from armed domestic abusers,” the Illinois Democrat said. “And I don’t believe the founders of this nation would have wanted courts to simply ignore this danger while applying the Constitution to erode it.”
Durbin argued that the Supreme Court gave precious little guidance in Bruen on how to apply its mandated historical test, essentially clearing a path for lower courts to relax gun laws by cherry-picking supporting evidence from historical legal frameworks.
“The gun lobby saw Bruen as a landmark win,” Durbin said, “but it is a significant challenge for police, law enforcement and the population of America when it comes to public safety.”
Ruth Glenn, president of public affairs for the National Coalition Against Domestic Violence, told the committee in written testimony Wednesday that the Bruen ruling and the Fifth Circuit’s decision have “caused substantial harm to survivors of domestic violence.”
Glenn also poked holes in the Supreme Court’s insistence on relying on the historical perspective of the Second Amendment, saying that U.S. society has evolved, especially in areas of gender equality, since the Constitution was written.
“The lack of historical laws restricting firearms access by domestic abusers is not evidence that such laws are unconstitutional,” Glenn said.
Amy Swearer, a senior legal fellow at right-leaning think tank the Heritage Foundation, took the opposite tack, arguing that the Fifth Circuit was right to consider it unconstitutional to disarm a person under domestic violence restrictions. Swearer contended that offenders could instead be barred from gun ownership under other methods, such as a condition of pretrial release.
“It’s not Bruen that will, as some critics have stated, get women killed,” Swearer said. “Both before and after Bruen, it’s terrible criminal justice policies that get women killed.”
Swearer chalked up the response to the Bruen ruling as fearmongering. “Even today, the title of this hearing presupposes — albeit with fewer theatrics — that Bruen is a thing from which the public must be protected,” she said. “This is simply not true.”
Meanwhile, Senator Lindsey Graham, the Republican ranking member on the Senate’s judiciary panel, opined that there could be a bipartisan path forward on addressing national gun violence, referencing a 2021 bill from Texas Senator John Cornyn aimed at building a consensus on expanding background checks for firearms purchases.
“There’s a bipartisan approach to some of these issues,” Graham said. “I would hope we can find common ground to go after those who abuse the right to own a weapon and act irresponsibly, and to enforce the laws on the books.”
This story has been updated to reflect that the Rahimi case came out of Texas.
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